Prairie View A&M Univ.
v.
Chatha

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of Texas.Nov 16, 2012
381 S.W.3d 500 (Tex. 2012)
381 S.W.3d 50055 Tex. Sup. Ct. J. 1267

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No. 10–0353.

2012-11-16

PRAIRIE VIEW A & M UNIVERSITY, Petitioner, v. Diljit K. CHATHA, Respondent.

Gregory C. Douglass, Gregory C. Douglass, P.C., Austin, TX, for Amicus Curiae George Lueck. Clara B. Burns, Jose Abelardo Howard–Gonzalez, Kemp Smith LLP, El Paso, TX, for Amicus Curiae Texas Association of Business.



Gregory C. Douglass, Gregory C. Douglass, P.C., Austin, TX, for Amicus Curiae George Lueck. Clara B. Burns, Jose Abelardo Howard–Gonzalez, Kemp Smith LLP, El Paso, TX, for Amicus Curiae Texas Association of Business.
Beth Ellen Klusmann, Assistant Solicitor General, Daniel T. Hodge, First Asst. Attorney General, David C. Mattax, Director of Defense Litigation, David S. Morales, Deputy First Assistant Attorney General, Greg W. Abbott, Attorney General of Texas, Jonathan F. Mitchell, Solicitor General, Madeleine Connor, Assistant Attorney General, Ruth A. Hughes, Director of Defense Litigation, Thomas Matthew Lipovski, William (Bill) J. Cobb III, Deputy Atty. General for Civil Litigation, Office of the Attorney General, Austin, TX, Clarence Andrew Weber, Kelly Hart & Hallman LLP, Austin, TX, James C. Ho, Gibson Dunn & Crutcher LLP, Dallas, TX, for Petitioner Prairie View A&M University.
Brian J. Levy, Ellen Sprovach, Rosenberg & Sprovach, Houston, TX, for Respondent Diljit K Chatha.
Justice GUZMAN delivered the opinion of the Court in which Justice HECHT, Justice WAINWRIGHT, Justice MEDINA, Justice GREEN, Justice JOHNSON, and Justice WILLETT joined.


The Texas Commission on Human Rights Act (TCHRA) is a comprehensive fair employment practices act and remedial scheme, modeled after Title VII of the federal Civil Rights Act of 1964 (Title VII), that provides the framework for employment discrimination claims in Texas. At issue here is section 21.202 of the TCHRA, which obligates a claimant to file a complaint with the Texas Workforce Commission civil rights division (TWC) or the Equal Employment Opportunity Commission (EEOC) not later than the 180th day after the date an allegedly unlawful employment practice occurs. The term “occur” is not defined in the TCHRA, but we have previously interpreted it to mean when a discriminatory employment decision is made—not when the effects of that decision become manifest in later events. Our interpretation mirrored the United States Supreme Court's interpretation of Title VII until recently. But, in 2009, Congress enacted the Lilly Ledbetter Fair Pay Act (Ledbetter Act), amending Title VII to provide that a discriminatory pay decision occurs each time a paycheck is received and not just when an initial salary decision is made. Thus, when a claimant files a discriminatory pay claim under federal law, the 180–day limitations period begins each time a claimant receives a paycheck containing a discriminatory amount. The Texas Legislature has not similarly amended the TCHRA.

As we have previously observed, courts refer to Chapter 21 of the Labor Code as the Texas Commission on Human Rights Act. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 798 n. 1 (Tex.2010). However, the Commission on Human Rights has been replaced with the Texas Workforce Commission civil rights division. Id. Throughout this opinion, we refer to Chapter 21 of the Labor Code as the TCHRA.


Title VII is codified at 42 U.S.C. §§ 2000e to 2000e–17.


See
Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111–2, 123 Stat. 5.


As a matter of first impression, we must determine whether the federal Ledbetter Act applies to a claim brought under the TCHRA so that the 180–day limitations period begins anew each time a claimant receives a paycheck containing a discriminatory amount. Because Title VII and the TCHRA are no longer analogous where discriminatory pay claims are concerned, and because the Legislature—and not this Court—is the proper governmental branch to amend the TCHRA, we hold that the federal Ledbetter Act does not apply to a claim brought under the TCHRA. Thus, in accordance with the TCHRA and our precedent, we conclude that a pay discrimination complaint must generally be brought within 180 days of the date the claimant is informed of the compensation decision. We further hold that the 180–day filing requirement is a mandatory statutory requirement that must be complied with before filing suit, and, as such, is a statutory prerequisite to suit under section 311.034 of the Government Code. Because the claimant here failed to timely file her complaint with the TWC, we conclude that her suit is jurisdictionally barred by section 311.034. We therefore reverse the court of appeals' judgment and render judgment dismissing the suit.

I. Factual and Procedural Background

Respondent Dr. Diljit K. Chatha is a professor at Prairie View A & M University (the University). Chatha began employment at the University in 1987 and applied for a promotion from associate professor to full professor in 2003. She was initially denied the promotion but received it in 2004. At that time, she complained to the University that her salary was inequitable but was told there were no funds available for a salary adjustment. About two years after her promotion, Chatha filed a complaint with the EEOC and the TWC, alleging race and nationality-based pay discrimination. Chatha is of Indian national origin. In her complaint, Chatha marked the “continuing action” box, alleging discrimination between September 1, 2005 and September 26, 2005. After receiving right-to-sue notices from the EEOC and the TWC, Chatha filed suit against the University in state court under the TCHRA. The University responded by filing a plea to the jurisdiction, asserting Chatha's TWC complaint was untimely filed pursuant to the 180–day limitations period under the TCHRA. SeeTex. Lab.Code § 21.202. The University specifically alleged that Chatha was aware of the alleged discriminatory salary in 2004, yet failed to file a complaint until 2006. Chatha responded that the federal Ledbetter Act applies to a discriminatory pay claim brought under the TCHRA because one of the TCHRA's purposes is to execute the policies of Title VII. See id.§ 21.001(1). The trial court denied the University's plea.

A claimant may file a complaint with either the EEOC, the federal agency authorized to investigate charges of discrimination, or the TWC, the Texas equivalent. See42 U.S.C. § 2000e–5(e)(1); Tex. Lab.Code §§ 21.201, .202; 40 Tex. Admin. Code. § 819.41(c). If a state has its own employment discrimination laws, as Texas does, Title VII requires the EEOC to defer charges of discrimination it receives from employees in those states to state or local fair employment practices agencies for at least sixty days, in this case the TWC, so that attempts to resolve disputes can first be undertaken under state law. 42 U.S.C. § 2000e–5(c); see Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.1991) (overruled on other grounds by In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 310 (Tex.2010)). Thus, charges that are filed by Texas employees with the EEOC are contemporaneously filed with the TWC. 42 U.S.C. § 2000e–5(d).


The University brought an interlocutory appeal, seeTex. Civ. Prac. & Rem.Code § 51.014(a)(8), and the court of appeals affirmed, holding that the Ledbetter Act applies to claims brought under the TCHRA, and Chatha's claim was therefore timely because she received a paycheck containing an alleged discriminatory amount within 180 days of the date she filed her complaint with the TWC. 317 S.W.3d 402, 404, 407. In reaching this decision, the court of appeals relied on (1) the general purposes provision of the TCHRA, and (2) two federal district court decisions that had applied the Ledbetter Act to the TCHRA. Id. at 407. We granted review to determine whether the Ledbetter Act applies to a pay discrimination claim brought under the TCHRA.

We have jurisdiction over this interlocutory appeal pursuant to Texas Government Code sections 22.001 and 22.225 because the court of appeals in this case held differently from a prior decision of another court of appeals on a question of law material to the resolution of this case. SeeTex. Gov't Code §§ 22.001(a)(2), 22.225(c); compare317 S.W.3d at 409,with, e.g., Cooper–Day v. RME Petroleum Co., 121 S.W.3d 78, 83–84 (Tex.App.-Fort Worth 2003, pet. denied) (concluding that pay discrimination occurs when an employee is informed of the discriminatory pay, not when the last discriminatory paycheck is received).


II. Analysis

A. Legal Framework

The TCHRA was “enacted to address the specific evil of discrimination and retaliation in the workplace,” as well as to coordinate and conform with federal anti-discrimination and retaliation laws under Title VII. See City of Waco v. Lopez, 259 S.W.3d 147, 153–55 (Tex.2008). Although from its inception the TCHRA was not an exact replica of Title VII, both the TCHRA and Title VII similarly define unlawful employment practice, and as part of each act's administrative process impose a strict 180–day statute of limitations for filing an employment discrimination complaint with the appropriate governmental agency, running from the date the alleged unlawful employment practice occurs. The TCHRA provides:

Compare42 U.S.C. § 2000e–2(a) (“It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.”), withTex. Lab.Code § 21.051 (“An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer: (1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or (2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.”).


(a) A complaint under this subchapter must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred.


The [TWC] shall dismiss an untimely complaint.
Tex. Lab.Code § 21.202. Prior to the federal Ledbetter Act's enactment in 2009, Title VII and the TCHRA contained virtually identical language concerning the 180–day limitations period.

Similarly, Title VII provides that “[a] charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred....” 42 U.S.C. § 2000e–5(e)(1).


Although we have always considered the TCHRA's plain language and our precedent in interpreting the TCHRA, see, e.g., Caballero v. Central Power & Light Co., 858 S.W.2d 359, 359–61 (Tex.1993), we have looked to federal law for guidance in situations where the TCHRA and Title VII contain analogous statutory language, see, e.g., Specialty Retailers v. DeMoranville, 933 S.W.2d 490, 492 (Tex.1996) (per curiam). Therefore, we previously looked to federal case law in interpreting the 180–day limitations provision in section 21.202 for defining when an unlawful employment practice occurs. See id. In Specialty Retailers, we held that the 180–day limitations period in the TCHRA commences “when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition.” Id. at 493. There, an employee was informed that she would be fired if her leave of absence lasted longer than one year. Id. at 492. When the employee did not return to work after a year, her employment was terminated. Id. We concluded that the 180–day limitations period began when the employee was informed of the alleged discriminatory policy, not when her employment was actually terminated a year later. Id. at 493. We noted a distinction between an act of continuing discrimination and an effect of past discrimination, and determined that the termination of her employment after a year's leave of absence could only be considered an effect of past discrimination. Id.

We cited as authority United States Supreme Court precedent—specifically, the Ricks decision—in reaching our conclusion. See id. at 492–93 (citing Del. State Coll. v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980)). In Ricks, a professor was denied tenure, and in accordance with the university's policy regarding unsuccessful tenure applicants, Ricks was instead offered a “terminal” one year contract. 449 U.S. at 253, 101 S.Ct. 498. Two months before his termination, Ricks filed an EEOC complaint alleging employment discrimination. Id. at 254, 101 S.Ct. 498. The Supreme Court held that Ricks's complaint was barred because it was filed more than 180 days after he was notified of the Board's decision to deny tenure. Id. at 257–58, 101 S.Ct. 498. It was the denial of tenure that constituted the allegedly discriminatory employment decision, not the actual termination one year later. Id. at 258, 101 S.Ct. 498. The Supreme Court noted that it is possible for the effects of a discriminatory employment practice to be most painful at a time far removed from the discriminatory decision itself, but, nonetheless, the discriminatory act occurs when the discriminatory decision is made. Id.

See also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (noting that “termination, failure to promote, denial of transfer, [and] refusal to hire” are examples of discrete acts of employment discrimination, and holding that a Title VII plaintiff “can only file a charge to cover discrete acts that ‘occurred’ within the appropriate time period”); Lorance v. AT & T Techs., Inc., 490 U.S. 900, 905–06, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989) (observing that a discriminatory act occurs at the time of the discriminatory act, not when the consequences of the act start having a discriminatory effect, and holding that complaints concerning a seniority system occurred when the system was adopted with discriminatory intent); United Air Lines v. Evans, 431 U.S. 553, 560, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) (holding that a challenge to a neutral seniority system “may not be predicated on the mere fact that a past event which has no present legal significance has affected the calculation of seniority credit, even if the past event might at one time have justified a valid claim against the employer”).


Twenty-seven years later, the Supreme Court reaffirmed the holding of Ricks in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 628–29, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007). In Ledbetter, the Court recognized that a paycheck containing a discriminatory amount is not a present violation, but rather the effect of a prior act of discrimination. Id. at 628, 127 S.Ct. 2162. The Court reasoned that the claimant could not shift the discriminatory intent from the initial salary decision to her paychecks, which were issued without discriminatory intent. Id. at 629, 127 S.Ct. 2162. Although the Court empathized with the employee's policy arguments, it reasoned that those arguments found no support in the statute and that holding as such would be inconsistent with prior precedent. Id. at 642–43, 127 S.Ct. 2162.

In response, Congress enacted the Ledbetter Act, which amended Title VII to provide in relevant part:

[A]n unlawful employment practice occurs, with respect to discrimination in compensation in violation of this subchapter, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
42 U.S.C. § 2000e–5(e)(3)(A) (emphasis added). Thus, the Ledbetter Act expanded the Title VII limitations period to allow an employee complaining of pay discrimination to file a complaint within 180 days after the receipt of any allegedly discriminatory paycheck.


The Texas Legislature has not similarly amended the TCHRA. Since the Ledbetter Act was enacted in 2009, the Legislature has twice considered but failed to enact proposed legislation conforming the TCHRA to Title VII in determining when an unlawful employment practice occurs in pay discrimination claims. Thus, under the TCHRA, the term “occur” is still statutorilyundefined, and the controlling authority for interpreting when an unlawful employment practice occurs remains our holding in Specialty Retailers.

See Tex. S.B. 280, 82d Leg., R.S. (2011); Tex. S.B. 986, 81st Leg., R.S. (2009).


Chatha argues that we should nonetheless interpret the TCHRA as incorporating the Ledbetter Act's amendments to Title VII. Chatha primarily relies on the general purposes provision of the TCHRA, which specifies a purpose of executing the policies of Title VII. SeeTex. Lab.Code § 21.001(1). Chatha contends that, relying on this provision, we have frequently looked to federal law in interpreting the TCHRA, and should do so here as well. The University counters that this Court has only looked to federal law for guidance in circumstances where Title VII and the TCHRA are analogous and that they are no longer analogous after the Ledbetter Act. We agree with the University.

B. The TCHRA Does Not Incorporate the Ledbetter Act

The general purposes provision of the TCHRA states that one of its purposes is to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.” Id. We have cited this provision when looking to federal law in interpreting the TCHRA, and have specifically stated that we should correlate the TCHRA with Title VII when possible. See, e.g., AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex.2008) (per curiam). But we have never said that the general purposes provision requires the TCHRA to forever remain identical to Title VII, regardless of subsequent congressional amendments to the federal act. Rather, we consider the plain terms of the TCHRA and our precedent, and look to federal law for guidance only when the relevant provisions of Title VII are analogous. See In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 308 (Tex.2010). Here, although the TCHRA and Title VII were previously analogous regarding when an unlawful employment practice occurs, after the Ledbetter Act, this is no longer true where pay discrimination complaints are concerned. Although Chatha invites us to read the general purposes provision as requiring the incorporation of subsequent amendments made to Title VII into the TCHRA, we decline to do so for several reasons.

First, the TCHRA's plain language does not evidence a legislative intent that Title VII amendments should be automatically incorporated into its provisions. The plain language of a statute is the surest guide to the Legislature's intent. See City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex.2009). The general purposes provision merely states that the TCHRA's purpose is to provide for the execution of policies embodied in Title VII “ and its subsequent amendments.” Tex. Lab.Code § 21.001(1). The reference to subsequent Title VII amendments means only that one of the TCHRA's purposes is to execute policies of Title VII as it may be amended, not that those amendments should be automatically incorporated into Texas law. See Fogle v. Sw. Bell Tel. Co., 800 F.Supp. 495, 499 (W.D.Tex.1992). Indeed, in enacting the TCHRA in 1983, the Legislature could not have foreseen every possible Title VII amendment going forward, and there is no indication the Legislature intended to automatically adopt every conceivable Title VII amendment, however substantive and far-reaching, into the TCHRA.

Second, the TCHRA is not identical to Title VII and the Legislature has not indicated an intent to make it so. For example, the TCHRA requires a plaintiff to file suit within two years after a plaintiff files a charge of discrimination while Title VII lacks this requirement. SeeTex. Lab.Code § 21.256. Further, the TCHRA requires a plaintiff to file suit within sixty days of receiving a right-to-sue letter whereas Title VII imposes a deadline of ninety days. Compare id. § 21.254, with42 U.S.C. § 2000e–5(f)(1). Had the Legislature intended the provisions of the TCHRA and Title VII to be identical, it could have conformed these nonanalogous provisions.

Finally, the Legislature has never treated the general purposes provision as automatically incorporating amendments made to Title VII into the TCHRA, but has instead acted legislatively when it wishes to conform the TCHRA to Title VII. One example is when, similar to the Ledbetter Act, Congress abrogated Supreme Court precedent in the context of discriminatory seniority systems. In 1989, the Supreme Court held that complaints regarding a discriminatory seniority system must be brought within 180 days after the adoption of the system, not when employees experience the adverse effects of that system. Lorance v. AT & T Techs., Inc., 490 U.S. 900, 907–08, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989). After Lorance, Congress amended Title VII to allow liability from an intentionally discriminatory seniority system not only at the time of its adoption but also at the time of its application. See Civil Rights Act of 1991, Pub.L. No. 102–166, 105 Stat. 1072, 1078–79. After Congress enacted this amendment, the Texas Legislature followed suit by amending the TCHRA to conform it to the new federal amendments concerning seniority systems. Tex. Lab.Code § 21.127. If the general purposes provision automatically incorporated amendments made to Title VII, subsequent enactments by the Legislature would have been wholly unnecessary.

The Ledbetter Act parallels the language of this amendment with respect to pay discrimination claims. Compare42 U.S.C. § 2000e–5(e)(2), with42 U.S.C. § 2000e–5(e)(3)(A).


Similarly, the Legislature acted in 2009 to amend the TCHRA following congressional amendments to the Americans with Disabilities Act. Compare ADA Amendments Act of 2008, Pub.L. No. 110–325, 122 Stat. 3553, 3555–58, with Act of May 27, 2009, 81st Leg., R.S., ch. 337, §§ 2–5, 2009 Tex. Gen. Laws 868, 869–70.


Nonetheless, Chatha points to our decision in Caballero as support for her assertion that this Court has previously interpreted the general purposes provision to incorporate Title VII provisions into the TCHRA. But Caballero does not support this proposition. There, we considered whether a litigant who is authorized to proceed in court under the TCHRA is entitled to a jury trial on damages. Caballero, 858 S.W.2d at 359. An employee filed suit against his employer for discrimination and, after a jury trial favorable to the employee, the trial court entered judgment permitting recovery of monetary damages. Id. The court of appeals, however, concluded that because the TCHRA is substantially an equitable statute, an employee was first required to obtain an injunction against his employer's conduct before being entitled to a jury trial. Id. We reversed, concluding that the court of appeals' reading of the relevant statutes erroneously turned a permissive procedure into a mandatory one, and the effect of that reading was inconsistent with the TCHRA as a whole. Id. at 359–60. We further observed that our construction of the relevant statutes was consistent with our precedent in injunction proceedings. Id. at 361. Only then did we note that one stated purpose of the TCHRA is to coordinate and conform TCHRA with Title VII, id., and that Congress had recently amended Title VII to clarify that a party seeking compensatory or punitive damages may demand a jury trial, id. n. 4. Thus, we looked to the plain terms of the TCHRA and relevant Texas case law in reaching our holding and merely observed that our holding was in line with recent amendments to Title VII.

Finally, Chatha points to two federal district court decisions that predicted Texas courts would abandon prior precedent and follow the Ledbetter Act in deciding when a discriminatory pay decision occurs under the TCHRA. See Klebe v. Univ. of Tex. Sys. (Klebe II), 649 F.Supp.2d 568, 571 (W.D.Tex.2009); Lohn v. Morgan Stanley DW, Inc., 652 F.Supp.2d 812, 829 (S.D.Tex.2009). Klebe II stated that the Ledbetter Act simply supplied a missing definition of the term “occurred” that was absent from prior law. See649 F.Supp.2d at 571. Thus, the Klebe II court suggested that if the TCHRA and Title VII are expressly different, courts should follow state law, but if the TCHRA is silent—such as on the meaning of “occur”—courts should follow the now-defined meaning of “occur” in Title VII. See id.

We respectfully disagree that when Congress enacted the Ledbetter Act, it merely supplied a missing definition. Rather, by amendment, it carved out an exception for pay discrimination claims to the already well-settled Ricks test for when an unlawful employment practice occurs. And while it is true that the TCHRA—like Title VII before the Ledbetter Act—is statutorily silent as to the definition of “occur,” we have previously held that an unlawful employment practice occurs when the employee is informed of the allegedly discriminatory employment decision. See Specialty Retailers, 933 S.W.2d at 493. But, unlike Congress, the Texas Legislature has not crafted an exception to this rule for pay discrimination claims. As we have explained, it is the province of the Legislature to determine whether to enact an exception similar to the Ledbetter Act in the context of pay discrimination claims under the TCHRA. For this Court to apply a nonanalogous federal statute like the Ledbetter Act in the absence of legislative action would require us to abdicate our role as interpreters of the law in favor of a lawmaking function. We decline to take that role.

C. The TCHRA Bars Chatha's Pay Discrimination Claims

Having concluded that the Ledbetter Act does not apply to Chatha's claims, we next determine whether Chatha's complaint was untimely filed under the TCHRA. Chatha does not argue her claims are timely if we conclude the Ledbetter Act does not apply. Nonetheless, because we have never directly addressed when a pay discrimination complaint must be filed under the TCHRA, we consider whether Chatha's complaint was untimely. Because the TCHRA and Title VII are no longer analogous as to when a discriminatory pay practice occurs, we look solely to our precedent in making this determination. In Specialty Retailers, we held that the 180–day limitations period in the TCHRA begins “when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition.” 933 S.W.2d at 493. This is because the discriminatory employment decision is the practice made with discriminatory intent. Our rule applies with equal force in the context of pay discrimination decisions. See Klebe v. Univ. of Tex. Sys. (Klebe I), No. 03–05–00527–CV, 2007 WL 2214344 (Tex.App.-Austin 2007, no pet.) (applying our general rule in Specialty Retailers to pay discrimination claims); Cooper–Day v. RME Petroleum Co., 121 S.W.3d 78, 85 (Tex.App.-Fort Worth 2003, pet. denied) (same).

The court of appeals here acknowledged that if the Ledbetter Act did not apply, each new paycheck would not constitute a new occurrence and Chatha's complaint would be untimely. 317 S.W.3d at 406.


In pay discrimination cases, the setting of an alleged discriminatory pay rate is a discrete act—that is, the only act taken with a discriminatory motive is the pay-setting decision. Subsequent paychecks containing an alleged discriminatory pay amount are merely consequences of past discrimination and do not constitute an unlawful employment practice under the TCHRA. Thus, an employee must file a complaint under the TCHRA within 180 days of the date she is informed of the alleged discriminatory pay decision. Here, Chatha was informed of the alleged discriminatory pay decision when she was promoted to full professor in 2004, yet she did not file a complaint with the TWC or the EEOC until 2006. Thus, Chatha's complaint was untimely filed under section 21.202. SeeTex. Lab.Code § 21.202.

We note that a situation could arise where an employer has adopted a facially discriminatory payment system that would potentially constitute an act of intentional discrimination anytime the employer issued a check to a disfavored employee. See Ledbetter, 550 U.S. at 634, 127 S.Ct. 2162;Cooper–Day, 121 S.W.3d at 84. However, neither party alleges that situation applies here.


Chatha's complaint of discrimination states that the last day of discrimination was in September 2005. However, even accepting this as true, her complaint was still filed outside of the 180–day limitations period because she did not file her complaint until September 2006.


D. The University's Plea to the Jurisdiction

Having concluded that Chatha's complaint was untimely filed under the TCHRA, we next determine whether that failure is a jurisdictional bar to suit. At the trial court, the University filed a combined motion for summary judgment and plea to the jurisdiction, asserting that because Chatha failed to comply with section 21.202, the trial court lacked jurisdiction over the suit. The Legislature has mandated that all statutory prerequisites to suit are jurisdictional in suits against governmental entities. Tex. Gov't Code § 311.034. Here, it is undisputed that compliance with section 21.202 is mandatory and that the University timely raised Chatha's failure to comply at the trial court. Thus, as we will explain below, we conclude that because the University is a governmental entity, and compliance with section 21.202 is a statutory prerequisite to suit under Texas Government Code section 311.034, the University's plea should have been granted and the case dismissed.

Because we conclude section 21.202 is a statutory prerequisite to suit under section 311.034, and is thus a jurisdictional requirement under that section, we need not decide whether section 21.202 itself is jurisdictional in nature.


1. Statutory Prerequisite to Suit Under Section 311.034 of the Texas Government Code

Since the Legislature amended section 311.034 of the Government Code in 2005, we have not construed its reach. Because there is some confusion among the courts of appeals about section 311.034's scope, we deem it prudent to review the jurisprudential context from which the statute was amended.

For decades, Texas courts followed the rule we announced in Mingus v. Wadley, establishing that when a cause of action is derived from statute, strict compliance with all statutory prerequisites is necessary to vest a trial court with jurisdiction. 115 Tex. 551, 285 S.W. 1084, 1087 (1926). But in 2000, in Dubai Petroleum Co. v. Kazi, we quoted the Restatement (Second) of Judgments in noting that “ ‘the modern direction of policy is to reduce the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction,’ ” 12 S.W.3d 71, 76 (Tex.2000) (quoting Restatement (Second) of Judgments § 11 cmt. b, at 118 (1982)), and “overrule[d] Mingus to the extent that it characterized the plaintiff's failure to establish a statutory prerequisite as jurisdictional,” id. Because Dubai involved private litigants, courts of appeals struggled with its application in cases against governmental defendants, citing the apparent dichotomy of Dubai's holding with the basic tenets of sovereign immunity and our treatment of the doctrine in statutory causes of action. See, e.g., King v. Tex. Dep't of Human Servs., 28 S.W.3d 27, 31 (Tex.App.-Austin 2000, no pet.).

In 2004, we expanded our holding in Dubai to governmental entities in Loutzenhiser, bringing clarity to any lingering confusion in the lower courts. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex.2004). There, we held that because the pre-suit notice requirement in section 101.106(a) of the Texas Tort Claims Act was not a condition of the statute's waiver of immunity, the failure to provide it was not a jurisdictional defect. Id. at 365;see Colquitt v. Brazoria Cnty., 324 S.W.3d 539, 542 (Tex.2010). We reasoned that because that provision states “[a] governmental unit is entitled to receive notice,” there was no question it was a mandatory statutory requirement; but, because it did not specify the consequences of a failure to provide notice, we concluded it was not a condition precedent to suit and the failure to give notice would not deprive the trial court of jurisdiction. Loutzenhiser, 140 S.W.3d at 359, 365;seeTex. Civ. Prac. & Rem.Code § 101.101(a); see also Colquitt, 324 S.W.3d at 543. The Legislature responded to Loutzenhiser in 2005, amending section 311.034 of the Government Code, entitled “Waiver of Sovereign Immunity,” to make notice requirements, and all other statutory prerequisites to suit, jurisdictional as to governmental entities:

In order to preserve the legislature's interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.... Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.
See
Tex. Gov't Code § 311.034 (emphasis added); Act of May 25, 2005, 79th Leg., R.S., ch. 1150, § 1, 2005 Tex. Gen. Laws 3783, 3783. This amendment evinces the Legislature's intent that all statutory prerequisites are now jurisdictional requirements as to governmental entities and are properly asserted in a plea to the jurisdiction. See Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 546 (Tex.2010); Colquitt, 324 S.W.3d at 543.


Accordingly, we must determine whether the 180–day filing deadline in the TCHRA is a statutory prerequisite to suit under section 311.034. We rely on statutory interpretation principles to ascertain and “give effect to the Legislature's intent as expressed by the statute's language.” Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.2009). We use definitions prescribed by the Legislature and any particular meaning the words have acquired. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008) (citing Texas Government Code section 311.011(b)).

The term “statutory prerequisite” has three components. First, it is of obviousmention that in order to fall within the ambit of section 311.034, a prerequisite must be found in the relevant statutory language. See Colquitt, 324 S.W.3d at 543 (recognizing that although the statute called for pre-suit notice, it also provided that formal notice is not required when the government has obtained timely actual notice, and thus because the government had actual notice, the failure to provide formal notice did not act as a statutory prerequisite to suit). Second, the prerequisite must be a requirement. And finally, the term “pre” indicates the requirement must be met before the lawsuit is filed. See Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 925 (Tex.2011) (holding that post-suit notice requirement was not jurisdictional, even in light of section 311.034, because post-suit notice is not a “prerequisite” to suit). Thus, according to the plain language of section 311.034, the term “statutory prerequisite” refers to statutory provisions that are mandatory and must be accomplished prior to filing suit.

The common meaning of the word requisite is “essential,” “necessary.” Webster's New Collegiate Dictionary 976 (1980).


This interpretation is supported by the particular meaning the term “statutory prerequisite” has acquired in our precedent. In drafting section 311.034, the Legislature took special care to use the term we articulated in Dubai. While in Mingus we held that all “statutory provisions are mandatory and exclusive,” 285 S.W. at 1087, in Dubai we “overrule[d] Mingus to the extent that it characterized the plaintiff's failure to establish a statutory prerequisite as jurisdictional,” 12 S.W.3d at 76 (emphasis added). With the 2005 amendment to section 311.034—that statutory prerequisites are jurisdictional in all suits against a governmental entity—the Legislature effectively abrogated our holding in Loutzenhiser and reverted to our broader holding in Mingus in suits against a governmental entity. See Mingus, 285 S.W. at 1087 (concluding that in suits against a governmental entity, “where the cause of action and remedy for its enforcement are derived not from the common law but from statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects or the action is not maintainable”). The Legislature's mandate is clear: In a statutory cause of action against a governmental entity, the failure to adhere to the statute's mandatory provisions that must be accomplished before filing suit is a jurisdictional bar to suit.

It is relevant to note that the Legislature has also made clear that statutory prerequisites are not only mandatory but also jurisdictional in the context of a statute's filing limitations period in wage claims. In Igal v. Brightstar Information Technology Group, Inc., we held that a Texas Labor Code Chapter 61 filing limitations period was mandatory but not jurisdictional. 250 S.W.3d 78, 86 (Tex.2008). In response to this holding, the Legislature amended Chapter 61 to clarify that the 180–day filing deadline for wage claims is jurisdictional and to require the dismissal of untimely wage claims for lack of jurisdiction. SeeTex. Lab.Code § 61.051(c) (“The 180–day deadline is a matter of jurisdiction.”); id. § 61.052 (“If a wage claim is filed later than the date described by Section 61.051(c), the examiner shall dismiss the wage claim for lack of jurisdiction.”).


Our interpretation is consistent with the doctrine of sovereign immunity. Sovereign immunity bars suits against the state and its entities, and this immunity remains intact unless surrendered in express and unequivocal terms by the statute's clear and unambiguous waiver. Tex. Gov't Code § 311.034; Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.2004). In this way, the Legislature specifically carves out particular substantive claims for which the State will consent to suit and provides the procedures a litigant must follow to obtain such waiver. We have observed that in order to allow the Legislature to protect not only its policy-making function but also to preserve its interest in managing state fiscal matters, this Court consistently defers to the Legislature to waive immunity from suit. See, e.g., Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 848 (Tex.2009) (“ ‘In a world with increasingly complex webs of governmental units, the Legislature is better suited to make the distinctions, exceptions, and limitations that different situations require.’ ”) (quoting City of Galveston v. State, 217 S.W.3d 466, 469 (Tex.2007)); Tex. Natural Res. Conservation Comm'n v. IT–Davy, 74 S.W.3d 849, 857 (Tex.2002) (“We again reaffirm that it is the Legislature's sole province to waive or abrogate sovereign immunity.”). Thus, it is the Legislature's function to determine what steps a litigant must take before the state's immunity is waived. See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 660 (Tex.2008) (“[T]he Legislature ... has consented to suits brought under the TCHRA, provided the procedures outlined in the statute have been met.”). Although section 311.034's scope is fairly sweeping, it is consistent with the purpose of sovereign immunity and within the Legislature's discretion to determine the procedures required before the State's immunity is waived.

Having construed the meaning of the term “statutory prerequisite,” we turn to whether Chatha's failure to comply with the requirements of section 21.202 is a jurisdictional bar to her suit against the University. As mentioned, section 21.202 provides:

(a) A complaint under this subchapter must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred.


(b) The [TWC] shall dismiss an untimely complaint.
Tex. Lab.Code § 21.202.


Since the 2005 amendment to section 311.034, three courts of appeals have specifically addressed whether the 180–day filing deadline in the TCHRA is a statutory prerequisite to suit as contemplated by section 311.034. All three concluded that it is. We agree.

Comptroller v. Landsfeld, 352 S.W.3d 171, 177–78 (Tex.App.-Fort Worth 2011, pet. denied); Lamar Univ. v. Jordan, No. 09–10–00292–CV, 2011 WL 550089, at *5 (Tex.App.-Beaumont Feb. 17, 2011, no pet.) (stating that “[t]he Labor Code filing deadlines are jurisdictional in cases involving statutory requirements relating to governmental entities”); Tex. Dep't of Health v. Neal, No. 03–09–00574–CV, 2011 WL 1744966, at *3 (Tex.App.-Austin May 6, 2011, no pet.) (reasoning that the waiver of sovereign immunity under the TCHRA applies “only if the claimant strictly satisfies the procedural requirements outlined in Chapter 21”).


We have repeatedly affirmed that any purported statutory waiver of sovereign immunity should be strictly construed in favor of retention of immunity. See, e.g., Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex.2003). Although our precedent establishes that the TCHRA clearly and unambiguously waives sovereign immunity, it is a limited waiver of immunity. See Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 660. The TCHRA is a statutory cause of action with no remedy at common law. As we have recently stated, it does not create subject matter jurisdiction in Texas courts; rather, a claimant can bring suit under the TCHRA against a governmental entity only after a claimant strictly satisfies the procedural requirements outlined in the TCHRA. Id. (“[T]he Legislature ... has consented to suits brought under the TCHRA, provided the procedures outlined in the statute have been met.”). In sum, we hold that section 21.202's administrative filing requirement is a mandatory statutory requirement that must be complied with before filing suit, and, as such, is a statutory prerequisite under section 311.034. Because Chatha failed to timely file her complaint with the TWC in accordance with the requirements of section 21.202, her suit against the University is jurisdictionally barred.

2. Response to the Dissent

Ignoring the plain language of section 311.034 and the Legislature's unequivocal abrogation of our decision in Loutzenhiser, the dissent posits that the failure to timely file a complaint with the TWC within 180 days is not a statutory prerequisite to suit. To support its argument, the dissent first attempts to draw a distinction based on whether the Legislature has specifically articulated that the pre-suit task must be accomplished before filing suit. This is a distinction without a difference. It is the Legislature that establishes the timeline for filing suit and the mandatory tasks that must be completed before filing; a statutory provision that is mandatory and must be complied with before filing suit is sufficient to fall within the ambit of section 311.034. The dissent's suggestion that the Legislature must specifically articulate in every instance that the plaintiff must comply with a provision or be barred from filing suit not only inexplicably constrains the plain language of section 311.034, but also renders the 2005 amendment to that statute meaningless. See Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 931 (Tex.2010).

Moreover, the dissent's argument mirrors the rationale we used in Loutzenhiser, where we reasoned that because the pre-suit notice provision was “not a condition of the Tort Claims Act's waiver of immunity as other provisions are,” the failure to provide it did not deprive the court of jurisdiction. 140 S.W.3d at 365. But the dissent's analysis is flawed. The 2005 amendment to section 311.034 expressly rejected this reasoning, and in turn made notice, along with other statutory prerequisites, conditions of a statute's waiver of immunity. We can find no logical basis for concluding, as our dissenting colleagues do, that pre-suit notice is different from any other mandatory statutory prerequisites provided by the Legislature, such as the pre-suit administrative filing requirement at issue here. Following the 2005 amendment to section 311.034, we concluded that mandatory pre-suit notice to a governmental defendant is a statutory prerequisite, whether or not the Legislature has specifically mandated that a plaintiff may not file suit until providing notice. See Arancibia, 324 S.W.3d at 547. We acknowledge that some courts of appeals have carved out specific provisions, such as certain filing deadlines, as non-jurisdictional. But we agree with the other courts of appeals that have relied on our holdings in In re United Services Automobile Ass'n and Mission Consolidated Independent School District for the proposition that a mandatory statutory provision is a statutory prerequisite under section 311.034, provided it is to be complied with prior to filing suit. Under section 311.034, a statutory requirement commanding action before filing suit is a statutory prerequisite. See, e.g., In re United Servs. Auto. Ass'n, 307 S.W.3d at 299. Thus, a statutory prerequisite to suit, whether administrative (such as filing a charge of discrimination) or procedural (such as timely filing a lawsuit) is jurisdictional when the defendant is a governmental entity. SeeTex. Civ. Prac. & Rem.Code § 311.034.

See, e.g., Tex. Dep't of Criminal Justice v. Guard, No. 10–06–00065–CV, 2007 WL 1119572, at *3 (Tex.App.-Waco 2007, no pet.) (“[A] filing period is not an act that must be performed prior to filing suit and so is not a statutory prerequisite.”).


In re United Servs. Auto. Ass'n,
307 S.W.3d at 310 (“While the Legislature could make the Labor Code filing deadlines jurisdictional, as it has in cases involving statutory requirements relating to governmental entities, seeTex. Gov't Code § 311.034 (providing that' statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity'), it has not done so here.”); Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 660 (“The Legislature ... has consented to suits brought under the TCHRA, provided the procedures outlined in the statute have been met.”).


See, e.g.,
Jones v. State Bd. of Educator Certification, 315 S.W.3d 237, 240 (Tex.App.-Austin 2010, pet. denied) (stating that, “[i]n suits against governmental entities, a timely filed petition for judicial review is a statutory prerequisite to suit, so that failure to comply deprives the trial court of jurisdiction”); El Paso Indep. Sch. Dist. v. Alspini, 315 S.W.3d 144, 151 (Tex.App.-El Paso 2010, no pet.) (holding that the two-year limitations deadline to file suit under the TCHRA is a statutory prerequisite contemplated by section 311.034).


The dissent worries that under our holding, equitable defenses could potentially be urged against private employers but not governmental entities. However, the dissent's position invades the domain of the Legislature and cuts against the very nature of sovereign immunity. Because a governmental entity may challenge the denial of a plea to the jurisdiction in an interlocutory appeal, Tex. Civ. Prac. & Rem. CodeE § 51.014, the entity may effectively avoid the time and expense of litigating the merits of a case by first raising the statutory prerequisite issue under section 311.034. The potential absence of equitable defenses against governmental entities that retain their immunity is sovereign immunity's most basic tenet.

Finally, the dissent relies on the contrast between Title VII and the TCHRA, oddly suggesting that procedural differences under the two statutes would impose an unworkable dichotomy. The dissent suggests that equitable defenses will be available under Title VII, but not under the TCHRA when a claimant files an untimely complaint against a governmental entity. But given the 2005 amendment to section 311.034, looking to federal case law for guidance in determining the jurisdictional nature of the TCHRA's 180–day filing deadline is inappropriate when a claimant files suit against a governmental entity. Although we look to federal law for guidance in situations where the TCHRA and Title VII contain analogous statutory language, see, e.g., In re United Servs. Auto. Ass'n, 307 S.W.3d at 308, that is not the case here. Congress has not enacted a provision comparable to section 311.034. Thus, we do not look to federal case law for guidance, as it would provide none.

In sum, the dissent's approach wholly ignores the Legislature's straightforward mandate that in suits against the government, statutory prerequisites are jurisdictional. The Legislature has made clear that the failure to file an administrative complaint within 180 days of the alleged unlawful employment discrimination by a governmental entity is a jurisdictional bar because it is a statutory prerequisite to suit under section 311.034 of the Government Code. Thus, because Chatha failed to file her complaint with the TWC within 180 days after the alleged unlawful employment practice occurred, the University properly asserted a plea to the jurisdiction, and the plea should have been granted. SeeTex. Lab.Code § 21.202(a) (“A complaint under this subchapter must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred.”).

III. CONCLUSION

It does not escape our attention that it may be difficult for employees to discover discriminatory policies because of the secrecy of compensation decisions. Ledbetter, 550 U.S. at 645, 649–50, 127 S.Ct. 2162 (Ginsberg, J., dissenting). Moreover, we recognize the potential difficulty facing employers and employees in having the 180–day limitations period for filing a pay discrimination complaint accrue at different times under Title VII and the TCHRA. But we are not the law-making body. We are called to interpret and apply the law as it is enacted by the Legislature. Our precedent establishes that the 180–day limitations period in the TCHRA begins “when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition.” Specialty Retailers, 933 S.W.2d at 493. Congress has created an exception in the Ledbetter Act for pay discrimination claims brought under Title VII; the Texas Legislature has not. We decline to adopt federal statutory language that the Legislature has failed to similarly enact into state law. We therefore reverse the court of appeals' judgment and render judgment dismissing the suit. Chief Justice JEFFERSON filed a dissenting opinion in which Justice LEHRMANN joined.
Chief Justice JEFFERSON, joined by Justice LEHRMANN, dissenting.


“Jurisdiction” is a term of profound consequence. Without it, a court lacks the power of adjudication. With it, a court may bind parties to a judgment. In the past, Texas courts have used the term casually, calling statutory mandates “jurisdictional” without thinking critically about its technical meaning. Our recent attempts to define the term with greater precision suggest an outcome at odds with the Court's disposition in this case. The Court's holding today is a step backwards and, for that reason, I respectfully dissent.

The Court holds that Chatha's complaint was untimely because the 180–day limitations period begins “when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition.” Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 493 (Tex.1996) (per curiam). But before a court can announce a decision on the merits, it must have the power to decide.

According to the Court, the court of appeals can decide this interlocutory appeal because a timely administrative complaint is a statutory prerequisite to filing a civil suit. If it is truly a prerequisite to suit, then the trial court has no power to hear the case. If the trial court rejects the government's jurisdictional plea, then a statute gives the court of appeals authority to rule on this non-final trial court order.

SeeTex. Civ. Prac. & Rem.Code § 54.014(a)(8).

But if, as I contend, a timely administrative complaint is not a statutory prerequisite, then the government must win or lose the old-fashioned way—on the merits. And if I am right about that, then it is not the trial court that lacks jurisdiction. We lack jurisdiction. A close reading of our cases, the statute, and U.S. Supreme Court precedent compels that we dismiss this case because we do not have authority to decide it.

See Ogletree v. Matthews, 262 S.W.3d 316, 319 n. 1 (Tex.2007) (“Texas appellate courts have jurisdiction only over final orders or judgment unless a statute permits an interlocutory appeal.”).

I. Is the 180–day limitations period a “statutory prerequisite to suit”?

The Legislature has specified that “[s]tatutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.” Tex. Gov't Code § 311.034. We must decide whether compliance with the 180–day statute of limitations is a “statutory prerequisite to suit.” The Court concludes that it is; I disagree, for the reasons outlined below.

But to place this discussion in the proper context, we must examine another question. Prairie View insists that regardless of whether a timely complaint is a “statutory prerequisite,” compliance with the 180–day limitations period is nonetheless jurisdictional. That is, the failure to file a timely administrative complaint strips the trial court of jurisdiction over this case. Because the Court would be required to confront that assertion if it accepted my analysis of the prerequisite issue, I turn to it first.

A. Schroeder's statement about the Texas Commission on Human Rights Act's 180–day limitations period, inessential to the holding, cannot survive Dubai and other cases.

We have previously addressed whether the Act requires exhaustion of administrative remedies before filing suit. See Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483 (Tex.1991). Without first filing a complaint with the Texas Commission on Human Rights, Schroeder sued his former employer for age discrimination. We held that “exhaustion of administrative remedies is a mandatory prerequisite to filing a civil action alleging violations of [the Act].” Id. at 488. Even though the Act did not explicitly require exhaustion, we thought a fair reading of various statutory provisions implicitly required claimants to present their complaints to the Commission before filing suit. We held that because our statute does not provide an unconditional private right of action, Schroeder's failure to file a complaint with the Commission created a jurisdictional bar to his age discrimination claim. Id. Earlier in the opinion, when outlining the statutory scheme, we noted that discrimination complaints had to be filed with the Commission within 180 days after the alleged practice occurred. Citing only a 1988 no writ decision, we stated that “[t]his time limit has been held to be mandatory and jurisdictional.” Id. at 486 (citing Green v. Aluminum Co. of Am., 760 S.W.2d 378, 380 (Tex.App.-Austin 1988, no writ)). We did not mention a United States Supreme Court case decided nine years earlier, which held that Title VII's corresponding 180–day time limit was “not a jurisdictional prerequisite to suit” but a statute of limitations—that is, mandatory but not jurisdictional. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (holding that “[t]he structure of Title VII, the congressional policy underlying it, and the reasoning of our cases all lead to this conclusion”) We then commented, again citing only Green, that the one-year limitation period for filing suit was “also mandatory and jurisdictional.” Schroeder, 813 S.W.2d at 487 n. 10. Neither of these time limits was at issue in the case, as Schroeder had not filed a complaint with the Commission.

Zipes settled the confusion caused in part by the Supreme Court's previous characterization of the 180–day time limit as “jurisdictional.” See, e.g., Alexander v. Gardner–Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974).

Five years later, in a per curiam opinion, we held that the plaintiff's claim was time-barred because she filed it more than 180 days after the purported discrimination occurred. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490 (Tex.1996) (per curiam). Perhaps reflecting our own “less than meticulous” approach to jurisdiction, we rendered judgment in the petitioners' favor, rather than dismissing the case, despite our reiteration that the 180–day time limit was “mandatory and jurisdictional.” Id. at 492 (citing Schroeder, 813 S.W.2d at 485–86).

The new millennium brought a sea change. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex.2000), overhauled our approach to jurisdiction, reversing a number of decisions touting the old regime. It identified the problems with classifying a statutory mandate as “jurisdictional” and held that, although our older cases represented the dominant approach when they were decided, “ ‘the modern direction of policy is to reduce the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction.’ ” Id. at 76 (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 11 cmt.e at 113 (1982)). We overruled Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926), “to the extent that it characterized the plaintiff's failure to establish a statutory prerequisite as jurisdictional.” Id. Instead, we held that “ ‘[t]he right of a plaintiff to maintain a suit, while frequently treated as going to the question of jurisdiction, has been said to go in reality to the right of the plaintiff to relief rather than to the jurisdiction of the court to afford it.’ ” Id. at 76–77 (quoting 21 C.J.S. Courts § 16, at 23 (1990)).

After Dubai, we held that the Payday Law's 180–day time limit for filing an administrative complaint is mandatory but not jurisdictional. Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78 (Tex.2008), superseded by statute,Tex. Lab.Code § 61.051(c). We relied on the statute's text, which “establishe[d] a procedural bar similar to a statute of limitations and does not prescribe the boundaries of jurisdiction,” and reviewed our evolution of thought about the contours of jurisdiction. Id. at 83–84 (citing Dubai, 12 S.W.3d at 76). We also looked to Zipes and discussed the U.S. Supreme Court's distinction between “ ‘rule governing subject matter jurisdiction and an inflexible claim-processing rule.’ ” Id. at 85 (quoting Kontrick v. Ryan, 540 U.S. 443, 456, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004)). Ultimately, we concluded that “the Legislature ... created the 180–day filing limitations period as a mandatory condition to pursuing the administrative causes of action and not as a bar to ... jurisdiction.” Id. at 86. We observed:

Although in the past we have described a statutory time limitation in the Commission on Human Rights Act as ‘mandatory and jurisdictional,’ those cases predate Dubai and dealt with a different statutory scheme than presented here. See Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 929 (Tex.1996); Specialty Retailers v. DeMoranville, 933 S.W.2d 490, 492 (Tex.1996); Schroeder v. Tex. Iron Works, 813 S.W.2d 483, 486 (Tex.1991).
Id.
at 83–84 n. 5.


We recently overruled Schroeder to the extent it held that the Act's two-year deadline for filing suit was jurisdictional. In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 310 (Tex.2010). Commenting on our “sometimes intemperate” use of the term, we observed that our courts of appeals have questioned whether Schroeder remained the law after Dubai. Id. at 306. We also noted that Green, the only authority cited in Schroeder, in turn relied on Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926), which Dubai overruled. Id.

In 1993, the Legislature changed the limitations period from one to two years. Act of May 14, 1993, 73rd Leg. R.S., ch. 276, § 7, 1993 Tex. Gen. Laws 1285, 1291 (amending Tex.Rev.Civ. Stat. art. 5221k, § 7.01(a)) (now codified at Tex. Lab.Code § 21.256).

See also Ramirez v. DRC Distribs., Ltd., 216 S.W.3d 917, 921 n. 8 (Tex.App.-Corpus Christi 2007, pet. denied) (collecting cases).

We then examined Schroeder's statement about the two-year deadline for filing suit. The provision that we considered, Labor Code section 21.256, was titled “Statute of Limitations,” which gave some indication of the Legislature's intent. Id. at 307–08. Although the statute stated that an action “may not be brought” after two years, that language made the provision mandatory but not necessarily jurisdictional. Moreover, our procedural rules and our cases classify limitations as an affirmative defense. Id. The statute was enacted to “ ‘provide for the execution of the policies of Title VII.’ ” Id. at 308 (quoting Tex. Lab.Code § 21.001(1)). Thus, “ ‘analogous federal statutes and the cases interpreting them guide our reading of the [Act].’ ” Id. (quoting Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex.2001)). The U.S. Supreme Court has consistently construed Title VII's requirements as mandatory but not jurisdictional, and although that Court had not considered whether the two-year deadline for filing suit under Title VII was jurisdictional, every federal circuit to have considered the issue held that it was. Id. at 308–09 (collecting cases).

We then considered the consequences that resulted from each interpretation. Because a judgment is void if rendered by a court without subject matter jurisdiction, a trial court's denial of a summary judgment based on the failure to satisfy the Act's requirements would forever be open to reconsideration. “Conversely, those courts that granted such motions would have had no power to do so, nor would appellate courts have had the power to affirm [them]”. Id. at 309–10 (collecting cases). We concluded:

In keeping with the statute's language, Dubai and subsequent cases, as well as the purposes behind TCHRA and federal interpretations of Title VII, we conclude that the two-year period for filing suit is mandatory but not jurisdictional, and we overrule Schroeder to the extent it held otherwise.
Id.
at 310. Because the precise question was not before us, we did not consider whether Schroeder's statement that the 180–day time limit is jurisdictional survived Dubai.


Today, I would put the final nail in Schroeder's statute-of-limitations coffin. Schroeder requires exhaustion of administrative remedies before filing suit, but its stray statements regarding filing deadlines are without basis in the statute's text, and are inconsistent with Dubai and U.S. Supreme Court precedent. We have already overruled one of those statements. It is time to dispense with the second.

The case for doing so is even stronger today than it was when we decided In re USAA. First, there is U.S. Supreme Court precedent squarely on point. See Zipes, 455 U.S. at 393, 102 S.Ct. 1127 (holding that filing a complaint within Title VII's 180–day time limit is “not a jurisdictional prerequisite to suit”). As that Court recently recognized, “[f]iling deadlines ... are quintessential claim-processing rules” that should not be described as jurisdictional. Henderson v. Shinseki, ––– U.S. ––––, 131 S.Ct. 1197, 1203, 179 L.Ed.2d 159 (2011). Our Act was modeled on Title VII and enacted to provide for the execution of its policies, and the two statutes are virtually identical on this point. Although Zipes interpreted the federal act and does not control the outcome here, its analysis is sound.

.Tex. Lab.Code § 21.001(1) (stating that its purpose is to “provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments”).

Compare42 U.S.C.2000e–5(e) (2010)(“A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.”) withTex. Lab.Code § 21.202(a) (“A complaint under this subchapter must be filed not later than the 180th day after the date the alleged unlawful employment practice occurred.”).

Second, the Act itself supports such a reading. We presume the Legislature did not intend to make the provision jurisdictional, and its text does not command the contrary. City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex.2009). The applicable provision is titled “Statute of Limitations.” Tex. Lab.Code § 21.202. The statute's penalty for noncompliance—the Commission must dismiss an untimely complaint—does not speak to a court's jurisdiction over a discrimination claim based on that complaint. See Henderson, 131 S.Ct. at 1202 (holding that “a rule should not be referred to as jurisdictional unless it governs a court's adjudicatory capacity, that is, its subject-matter or personal jurisdiction”) (emphasis added); cf. Zipes, 455 U.S. at 394, 102 S.Ct. 1127 (noting that the limitations provision “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts ”) (emphasis added); State v. Lueck, 290 S.W.3d 876, 883 n. 1 (Tex.2009) (distinguishing between an administrative agency's jurisdiction and a court's “jurisdiction in a case where the State asserts a plea to the jurisdiction, claiming that its sovereign immunity is not waived”). The same is true under federal law, as the EEOC must dismiss untimely charges under Title VII. Compare29 C.F.R. 1601.18(a) ( “Where a charge ... is not timely filed ... the Commission shall dismiss the charge.”), withTex. Lab.Code § 21.202(b) (“The commission shall dismiss an untimely complaint.”); see also, e.g., Bradshaw v. City of Gulfport, 427 Fed.Appx. 386 (5th Cir.2011) (“The EEOC dismissed the charge as untimely and issued a right to sue letter....”); Simotas v. Kelsey–Seybold, 211 Fed.Appx. 273, 274 (5th Cir.2006) (“The EEOC dismissed the charge as untimely and issued a notice of right to sue.”); Hamilton v. Komatsu Dresser Indus., Inc., 964 F.2d 600, 603 (7th Cir.1992) (same); Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1213 (5th Cir.1992) (same). This requirement did not lead the U.S. Supreme Court to conclude that Title VII's time limit was jurisdictional, and it should not drive our analysis.

Federal regulations “have the force and effect of law” and are probative of Congressional intent. Century Marine, Inc. v. United States, 153 F.3d 225 (5th Cir.1998); see also Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712–713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) (“We have held repeatedly that state laws can be pre-empted by federal regulations as well as by federal statutes.”).

Third, Green, the only authority we relied on in Schroeder, was effectively overruled in Dubai, prompting us to overrule Schroeder to that extent. Now that the question is directly before us, it would be incongruous to affirm Schroeder's now-antiquatedconception of the 180–day period as jurisdictional.

Finally, as we previously recognized, judgments issued by courts without jurisdiction are void, meaning that long dormant cases could now be subject to attack. In re United Servs. Auto. Ass'n, 307 S.W.3d at 310. If the Act's administrative limitations period were jurisdictional, Texas would diverge starkly from federal law (and the decisions of many states) on this essential issue. For example, the continuing violation doctrine—an equitable exception to the limitations period (and one Chatha relies on in this case)—would no longer be applicable under Texas law, while it would remain viable under Title VII. See, e.g., Zipes, 455 U.S. at 393, 102 S.Ct. 1127 (holding that “a timely charge of discrimination ... is not a jurisdictional prerequisite to suit, ... but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling”).

See, e.g., Kyles v. Contractors/Eng'rs Supply, Inc., 190 Ariz. 403, 949 P.2d 63 (Ariz.Ct.App.1997) (holding that timely administrative filing requirement was not jurisdictional but a statute of limitations subject to waiver and equitable tolling); Williams v. Comm'n on Human Rights & Opportunities, 257 Conn. 258, 777 A.2d 645 (2001) (same); Green v. Burger King Corp., 728 So.2d 369, 371–72 (Fla.Dist.Ct.App.1999) (same); Bryant v. City of Blackfoot, 137 Idaho 307, 48 P.3d 636 (2002) (same); Christo v. Edward G. Boyle Ins. Agency, Inc., 402 Mass. 815, 525 N.E.2d 643 (1988) (same); BNSF Ry. Co. v. Cringle, 359 Mont. 20, 247 P.3d 706 (2010) (same); City of N. Las Vegas v. Nev. Local Gov't Emp.–Mgmt. Relations Bd., 261 P.3d 1071 (Nev.2011) (same); Ocana v. Am. Furniture Co., 135 N.M. 539, 91 P.3d 58 (2004) (same); Johnson v. Newport Cnty. Chapter for Retarded Citizens, Inc., 799 A.2d 289 (R.I.2002) (same); Douchette v. Bethel Sch. Dist. No. 403, 117 Wash.2d 805, 818 P.2d 1362 (1991) (same); Indep. Fire Co. No. 1 v. W. Va. Human Rights Comm'n, 180 W.Va. 406, 376 S.E.2d 612 (1988) (same).

See, e.g., Glass v. Petro–Tex Chem. Corp., 757 F.2d 1554, 1560–61 (5th Cir.1985) (“The core idea [of the continuing violations theory] ... is that ‘[e]quitable considerations may very well require that the filing periods not begin to run until facts supportive of a Title VII charge ... are or should be apparent to a reasonably prudent person similarly situated.’ ”) (citation omitted).

We need not revisit Schroeder's holding that the failure to exhaust administrative remedies deprives a court of jurisdiction over a subsequent suit. That question is not before us, and there is no Supreme Court precedent on point. Although every federal circuit court of appeals follows Zipes, there is a split (even among panels of the Fifth Circuit) about whether the total failure to file an administrative complaintis a jurisdictional defect. But the answer in today's case is clear. Based on the statute's text, Dubai and U.S. Supreme Court caselaw, as well as chapter 21's explicit goal to execute Title VII's policies, I would hold that the 180–day statute of limitations is mandatory but not jurisdictional, and I would overrule Schroeder to the extent it holds otherwise. In the relatively near future, a case will arrive in which one side will urge that we apply the Schroeder language characterizing the 180–day statute of limitations period as jurisdictional. I hope the Court will take that opportunity to reject that invitation. See Charles Evan Hughes, Lecture delivered as part of the Columbia Lecture Series (1927), in THE SUPREME COURT OF THE UNITED STATES: Its Foundations, Methods, and Achievements 68 (1928) (noting that a dissenting opinion is “an appeal ... to the intelligence of a future day”).

See, e.g., Vera v. McHugh, 622 F.3d 17, 29–30 (1st Cir.2010); Hutson v. Wells Dairy, Inc., 578 F.3d 823, 826 (8th Cir.2009); Farzana K. v. Ind. Dep't of Educ., 473 F.3d 703, 705 (7th Cir.2007) (“Timely filing may be a condition to success, but it is not a jurisdictional requirement in federal court.”); Fernandez v. Chertoff, 471 F.3d 45, 58 (2d Cir.2006); Steiner v. Henderson, 354 F.3d 432, 435 (6th Cir.2003); Sizova v. Nat'l Inst. of Stds. & Tech., 282 F.3d 1320, 1325 (10th Cir.2002); Draper v. Coeur Rochester, 147 F.3d 1104, 1107 (9th Cir.1998); Grayson v. K Mart Corp., 79 F.3d 1086, 1103 n. 32 (11th Cir.1996); Schafer v. Bd. of Public Educ., 903 F.2d 243, 251 (3d Cir.1990); Henderson v. U.S. Veterans Admin., 790 F.2d 436, 440 (5th Cir.1986); Greene v. Whirlpool Corp., 708 F.2d 128, 130 (4th Cir.1983). Although Zipes involved two private parties, every federal circuit court of appeals has also held that the administrative time limits are not jurisdictional prerequisites in Title VII actions brought by federal employees. John L. Sobieski, Jr. & Joseph G. Cook, Civil Rights Actions ¶ 21.18[B][1][a] (2012); see also, e.g., Henderson v. U.S. Veterans Admin., 790 F.2d 436, 439–40 (5th Cir.1986) (holding that filing deadlines “are in the nature of statutes of limitations which are subject to waiver, estoppel, and equitable tolling,” and “[l]ack of timely notification [to the appropriate administrative authority] ... does not deprive the court of subject matter jurisdiction.”).

See, e.g., Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir.2009) (holding that “a failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim.”); Pacheco v. Mineta, 448 F.3d 783, 788 n. 7 (5th Cir.2006) (noting that under Zipes, filing deadlines are not jurisdictional, but “[t]here is a disagreement in this circuit on whether a Title VII prerequisite, such as exhaustion, is merely a prerequisite to suit ... or whether it is a requirement that implicates subject matter jurisdiction”); Terry v. Ashcroft, 336 F.3d 128, 150 (2d Cir.2003) (“The requirement that a claim be first raised with the EEO office, however, is not a jurisdictional one.”); Sommatino v. United States, 255 F.3d 704, 708 (9th Cir.2001) (“In cases where a plaintiff has never presented a discrimination complaint to the appropriate administrative authority, we have held that the district court does not have subject matter jurisdiction.”); Jones v. Runyon, 91 F.3d 1398, 1399–1400 n. 1 (10th Cir.1996) (“[E]ven after Zipes our court has referred to the requirement of an EEOC filing (as opposed to a mere requirement of a timely filing) as a jurisdictional requirement.”); Bullard v. Sercon Corp., 846 F.2d 463, 468 (7th Cir.1988) (noting that “Title VII's requirement that the plaintiff exhaust the administrative remedies provided by the statute is jurisdictional” and distinguishing between a plaintiff who files an untimely charge and one who files no charge); Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992, 1005 (11th Cir.1982) (“[T]he filing of an EEOC charge is not a jurisdictional prerequisite” to a Title VII suit in federal court.).

B. The 180–day administrative limitations period is not a “statutory prerequisite to suit.”

The opportunity to correct Schroeder exists today, but for the Court's inclination to conclude that the 180–day time limit is a “statutory prerequisite to suit,” which the Legislature has made jurisdictional in cases involving governmental entities. Tex. Gov't Code § 311.034. In defining that term, the Court holds that it applies to “a statutory requirement commanding action before filing suit.” 381 S.W.3d at 515. The Court reaches this conclusion by relying heavily on the Legislature's reaction to our prior decisions. But we do not construe statutes to avoid a future legislature's potential disagreement with the outcome; we interpret the statute as it currently exists. See Massachusetts v. EPA, 549 U.S. 497, 530, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007); Rowan Oil Co. v. Tex. Employment Comm'n, 152 Tex. 607, 263 S.W.2d 140, 144 (1953) (observing that “neither does one session of the Legislature have the power to construe the Acts or declare the intent of a past session”).

Our presumption that a provision is not jurisdictional is overcome only by clear legislative intent to the contrary. City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex.2009). Thus, if a requirement is not “ specifically mandate[d] ... as a prerequisite to suit or appeal,” it is not jurisdictional. Id. at 396 (emphasis added). We held in Schroeder that a party must file a complaint with the Commission before filing suit, but we did not conclude that only a timely filing satisfied that requirement. The complainant in that case failed to file any administrative complaint, and we determined that his suit was thus jurisdictionally barred. Schroeder, 813 S.W.2d at 488.

By contrast, this case involves a statute of limitations, which our procedural rules and cases classify as an affirmative defense—not a prerequisite to suit. A prerequisite is something required beforehand, and complying with the limitations period does not qualify. A claimant may sue even if her claims are barred by limitations. Cf. City of DeSoto v. White, 288 S.W.3d 389 (Tex.2009) (holding that notice requirement was “not a statutory prerequisite to suit” because although “the statute requires notice, ... it does not specifically mandate it as a prerequisite to suit or appeal”).

.Tex.R. Civ. P. 94; In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 308 (Tex.2010) (recognizing that limitations is an affirmative defense); In re City of Georgetown, 53 S.W.3d 328, 332 (Tex.2001) (noting that our procedural rules have the force and effect of statutes); see also, e.g., Hitchcock Indep. Sch. Dist. v. Walker, No. 01–10–00669–CV, 2010 WL 5117912, at *6, 2010 Tex.App. LEXIS 9941, at *18 (Tex.App.-Houston Dec. 16, 2010, no pet.) (holding that Whistleblower Act's 90–day limitations period for suing governmental entity was mandatory but not jurisdictional); Dallas County v. Hughes, 189 S.W.3d 886, 888 (Tex.App.-Dallas 2006, pet. denied) (observing that prerequisite is something required beforehand and holding that limitations period is not a “prerequisite” for purposes of Government Code section 311.034).

.Webster's Third New Int'l Dictionary 1791.

If an administrative complaint is late, the Commission must dismiss it. Tex. Lab. Code § 21.202(b). The complainant may then request a “right to sue” letter, and within sixty days of receiving that letter, the complainant “may bring a civil action against the respondent.” Id. §§ 21.252, .254; 40 Tex. Admin. Code §§ 819.46(b), (c), 819.50. So while filing a complaint with the Commission is a statutory prerequisite to suit, meeting the 180–day statute of limitations is not. As the U.S. Supreme Court recently concluded, Title VII's 180–day time limit makes no reference to the concept of exhaustion and is not “in any sense an exhaustion provision.” Woodford v. Ngo, 548 U.S. 81, 98–99, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006).

In the codification of section 21.252(a), the word “not,” which, in the section's source law originally appeared before the word “resolved,” was moved to precede the word “dismissed.” The final iteration of the source law was repealed in 1993. Article 5221k, section 7.01(a) of the law stated that “[i]f the complaint ... is dismissed ... or is not resolved ... the commission shall so inform the complainant.” (emphasis added) (derived from Commission on Human Rights Act, 68th Leg., 1 C.S., ch. 7, § 7.01, 52–53(1983)). Without reference to the repealed law, section 7.01(a) was amended and is now codified in section 21.252(a), which states that if “the complaint is not dismissed or resolved” then the complainant is entitled to a written notice of the right to file a civil action. Tex. Lab.Code § 21.252(a) (emphasis added). Because this codification intended no substantive change, the rearrangement appears unintentional, and the Administrative Code confirms this. 40 Tex. Admin. Code § 819.46(a), (c) (providing that the CRD director may dismiss an untimely complaint and shall notify the complainant of the right to file a civil action). In any event, the right-to-sue letter is not a mandatory prerequisite to suit. SeeTex. Lab.Code § 21.252(d) (“Failure to issue the notice of a complainant's right to file a civil action does not affect the complainant's right under this subchapter to bring a civil action against the respondent.”); 40 Tex. Admin. Code § 819.51 (same).

See Schroeder, 813 S.W.2d at 488 (concluding that “exhaustion of administrative remedies is a mandatory prerequisite to filing a civil action alleging violations of the [Act]”).

We also consider the consequences of a particular construction. In re USAA, 307 S.W.3d at 309. There are procedural implications to calling something jurisdictional. In Texas state court, governmental entities may immediately appeal the denial of a jurisdictional plea. Tex. Civ. Prac. & Rem. CodeE § 51.014(a)(8). This may reduce time and money spent in litigation, furthering immunity's goal of protecting the public fisc. See City of El Paso v. Heinrich, 284 S.W.3d 366, 375 (Tex.2009). That may have been the Legislature's motivation in classifying statutory prerequisites to suit as jurisdictional. But there are “drastic” substantive ramifications too, and those are the most troubling. Henderson, 131 S.Ct. at 1202. Courts are stripped of the power to adjudicate the claim, and equitable defenses to limitations are no longer available. Cf. Zipes, 455 U.S. at 393, 102 S.Ct. 1127 (holding that “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit, ... but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling”).

This is particularly concerning because our statute is based on Title VII. Under the Texas Act, equitable defenses may now be urged against private employers but not governmental ones. See Helena Chem. Co. v. Wilkins 47 S.W.3d 486, 495 (Tex.2001) (holding that, in determining jurisdiction bars, a court must consider the consequences that result from each interpretation). By contrast, under Title VII, equitable defenses would apply regardless of the defendant's identity. Because the Legislature intended the Act to execute Title VII's policies, and because there is no “clear legislative intent” that the provision is a statutory prerequisite to suit, I would not impose such a dichotomy. I would hold that the 180–day limitations period is not a statutory prerequisite to suit but an affirmative defense that may be urged after suit is filed. Accordingly, it is not jurisdictional in cases involving governmental entities.

.Section 311.034 is part of the Code Construction Act, which does not apply to federal statutes. SeeTex. Gov't Code § 311.002.

.Tex. Lab.Code § 21.001(1).

City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex.2009).

II. Conclusion

Zipes held that the 180–day administrative limitations period was not jurisdictional. Today, the Court holds that, at least for government employers, it is. This creates innumerable problems, not the least of which are the elimination of equitable defenses and a divergence between the Act and the statute it was enacted to promote. This conflict is unnecessary, compelled neither by our statutes nor our cases. Because we presume a statute is not jurisdictional, because suit may be filed even if an administrative complaint was untimely, and because we construe the Act to effectuate Title VII's policies, I would hold that the 180–day period, while mandatory, is not a statutory prerequisite to suit. Because the Court concludes otherwise, I respectfully dissent.


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